Anestly Muthoni Mukobwa v [Defendant/Respondent]
The bottom line
#A Kenyan landowner's eviction application was struck out because she filed it in person without court leave after previously using a lawyer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is defective by virtue of Order 9 Rule 9 (a) of the Civil Procedure Rules
- 2.Whether an appeal can operate as stay
- 3.Whether the applicant is entitled to eviction orders
- 4.Who pays the costs of the application
Key legal issues
#Whether the application was fatally defective for breach of Order 9 Rule 9
The application was incurably defective because the plaintiff filed it in person while the firm of Ayub K Anampiu & Co Advocates remained on record, without leave of court or a consent
Order 9 Rule 9 governs both change of advocate and a party electing to act in person after judgment. Compliance is mandatory and requires either a formal application with notice to all parties or a filed consent. Judgment had been entered on June 20, 2018 and a decree issued, so the plaintiff, being previously represented, needed leave or consent before filing the motion in person. Article 159 could not cure the default since ignorance of the law is no defence.
Whether Article 159 (substantive justice over technicalities) excused the procedural default
No - the applicant could not shield herself behind Article 159 or ignorance of the law
Having found the correct procedure was not followed, the court held the applicant could not rely on Article 159 or claim ignorance as a defence. The mandatory nature of Order 9 Rule 9 prevailed, consistent with the authority in Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi on deliberate non-compliance with rules of procedure.
Whether an appeal operates as a stay and whether eviction orders should issue
Not determined; once the application was found defective, the court declined to consider the remaining issues
The court found the application incurably defective and expressly stated that it need not consider the other issues, including whether the pending appeal (Nyeri Civil Appeal No 187 of 2018) operates as a stay and whether the applicant was entitled to eviction orders. These issues remain open should a properly constituted application be filed.
Legal principles established
#- A party who wishes to act in person after judgment, having previously been represented by an advocate on record, must obtain leave of the court or file a consent under Order 9 Rule 9 before filing any application; non-compliance renders the application defective
Court orders
#- 1.Notice of motion dated June 28, 2022 struck out with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3A, 63(4) Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Eviction order against the respondent from LR Mwimbi/Murugi/1788
Application struck out as incurably defective, having been filed in person without leave of court contrary to the mandatory provisions of Order 9 Rule 9
Costs of the application
Costs awarded to the Respondent, not the applicant
Costs
Costs of the application to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the application dated June 28, 2022 is incurably defective and bad in law having been filed by a party who is not properly on record and without leave of court contrary to the mandatory provisions of Order 9 Rule 9
the applicant cannot shield herself with Article 159 or the ground of ignorance of the law since ignorance of the law is no defence
notice of motion dated June 28, 2022 is hereby struck out with costs to the Respondent
Having found that the application is defective, I need not consider the other issues
Issues in the judgment
#The court's own list of issues includes whether the application is defective under Order 9 Rule 9(a), framed as raised by the respondent, but the ruling does not state the names of the parties in the case caption; the defendant's name is not given in the extracted text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anestly Muthoni Mukobwa v [Defendant/Respondent]", Case Analysis (2023). Notice of Motion dated June 28, 2022 (suit re LR Mwimbi/Murugi/1788). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/447/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.